“Secret Recordings in Family Law Cases”

I can’t tell you how many times a current or potential client has told me “I have the recording to prove what I am telling you.” This always makes me ask, with trepidation, “Did your ex know that you were recording?”

This matters, because in California (although NOT Federal law) BOTH parties must consent and/or be aware that the conversation is being taped for it to be admissible. Taping someone’s statements, over the phone or in person, without consent, is a crime in California. As such, the family law court will NOT admit such recordings into evidence, and may even refer the matter to law enforcement.

There are some important exceptions to this rule, however. One is that the communication must be made under circumstances as reasonably indicate that any party to the communication desires it to be confined to the parties involved in the conversation. This means that if that the statements happen in public, they can be recorded. This comes up surprisingly often in a family law context at children’s sporting events, where both parents are present. If one party is making offensive, aggressive, or otherwise important statements to the other party in public, in front of other parents, the recording can be recorded and used in court.

Another situation is where voicemails are left. Because voicemails are, by nature, a recording, they are admissible.

A common situation comes up where there is conflict at the exchange of a minor. It often results in one party pulling out a phone to record. I always advise that if you do this, as soon as you turn on the recording device, you immediately state, so that the other party can hear it and it is on the recording, “I am recording this.” This puts the other side on notice that their actions and words are being recorded and that there is no expectation that this is a private conversation.

There is another very new exception, which is still being explored, which is this: recordings made to show evidence of domestic violence, human trafficking, or harm perpetuated on another are not a crime. Penal Code §633.5 was enacted and effective January 1, 2018, and states circumstances in which recordings can be made. The domestic violence provision is the one that will apply most often in family law, but it is unclear yet whether such recordings can be used ONLY to establish domestic violence, or whether they can be used in custody hearings as well. There will most likely be new case law on that as the issue works its way through the courts.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.

NOTICE: This blog and all materials on our website constitute advertisement materials, and the promulgation of such materials is meant for the residents of the State of California only. The attorneys and this firm do not practice law in any other state. In addition, the promulgation of these articles does not in any way create an attorney-client relationship and any inquiries and information you may send to the attorneys should be general and not specific, as they are not confidential.